NATURE AND DEFINITIONS
As must have become a traditional position for law students, the definition of legal concept rarely lend themselves to a universally accepted definition. This is no different in the case of the nature of jurisprudence, and even more so as it has different meanings to different philosophers in legal thinkers. In France for example, jurisprudence refers to that body of laws built by the courts overtime, aside from statutes and some other expert opinions. This is essentially what is referred to the sharp residence within the English legal system. However what the English would call jurisprudence, is what the French referred to as Theory General Du’ Droit, that is the general theory of law.
There are several philosophers a d erudite scholars who gave differing conceptions as to what Jurisprudence is. For instance, CK Allen defines it as “the scientific synthesis of existing principles of law” Salmond defines it as “the knowledge of law” Ronald Dworkin defined jurisprudence as “theories that are aimed at depicting the main point of law” Across these different definitions we find varying conceptions on law, but can as well see that jurisprudence involves the discovery of the purpose of law. Nevertheless, in the case of Daniels v Daniels (1958) 1 SA 513, it was stated that:
“To be sure there are lawyers, judges and even law professors who tell us that they have no legal philosophy. in law as in other things, we shall find that the only difference within a person ‘without a philosophy and someone with a philosophy’ is that the latter knows what is philosophy is and is therefore more able to make clear and justify the premises that are implicit in his statement of the fact of his experience and his judgment about those fact.”
And according to M A Ajomo:
“The teaching of jurisprudence begins on the hypothesis that words have no proper meaning except in the context in which they are used by the speaker. In other words, when closely examined bear no meaning of their own other than their ideological or prejudicial slant given to them by their user. So depending upon the speaker’s abstraction, words are no more than verbal recommendation of what the speaker feels they are within the context in which they are used.”
These show the never-ending nature of the philosophical debate and controversies that may remain the lifelong nature of jurisprudence and law, as long it is used and applied in any setting.
Jurisprudence has its specific concerns and ambit within which it operates, usually. The business if jurisprudence revolves the various contemplations of what the law is, was it conceptualizes, as opposed to the details of the laws and regulations as exists in different climes all over the world. Jurisprudence involves the various schools of thoughts on Law, some of which include the Historical school, Natural law, positivism, realism, sociological school of law among others.
Jurisprudence is the study of the characteristic nature of law, the embodiment of what it means, its origins and evolution, as well as its functions among others. No wonder the legal philosopher T.A Cohen stated:
“Law is a craft, each craft men have selected out and reserved to themselves over the millennia and area of human behavior. While the boundaries of this area are not sharply defined, and while what goes on inside of it is subject to much dispute. Yet its existence can be sensed even by a small child. Those who study the nature of this area of human behavior are engaged in the study of jurisprudence; they may walk inside the law itself studying the relation of each part to one another and the relation of the part to the whole. Or they may be interested primarily on the interactions of law and other learned disciplines. Those who walk within the structure of the law itself examining it bit by bit, section by section or in the overall are engaged in what is called analytical jurisprudence.”
Jurisprudence also involves the study of other thoughts on Law in relation to other disciplines, such as politics, psychology, economics, ethics and so on. It interrogates the fundamental philosophies and thought lines of law.
MEANING AND FUNCTIONS OF LAW
It was Professor Okunniga who stated as regards the futility of finding a universally acknowledged and complete definition of law that:
‘Nobody including the lawyer has offered, nobody including the lawyer is offering, nobody including the lawyer will ever be able to offer a definition of law to end all definitions’.
Indeed it is the Herculean task to define law or legal concepts as they are viewed and applied quite differently across different social settings. However one could refer to Law as those binding rules of conduct created to ensure justice or dictate obligations. Law as a matter of necessity must also carry punitive measures for those who disobey its dictates, it must be enforceable.
There are different viewpoints from which law can be studied, so that the more attempts are made at defining it, in order to simplify to concept, the more complex it gets. There are various theories of law. Historical, Positivist, Sociological, Realism, Realism, Natural law theories of law.
The Natural law school is that school believes that the law is what it ought to be rather than what it is. In other words that’s the mere creation of the law not make it law. It must be a rational law with rational ends and that this by reasoning, especially in correspondence with the laws of nature. And that it is from the loss of nature that true law is derived from or earns its legitimacy from. Philosophers of this school include Thomas Aquinas, Saint Augustine among others.
The positivist school of thought, is on the other hand is directly opposed to the beliefs of natural law school. From the philosophy of the likes of John Austin and Hans Kelson, The law is what it is. It is Law, given by a sovereign, who is an uncommanded commander and who determines what the law is. In other words, the law is derived from the powers of the lawmaker usually vested by him from the state or basically vested in him in any other way whatsoever.
The realist school of thought also called the legal realist school opens that law is enshrined in legal practice. This means that it is what is decided by the courts that is essentially law. What the judges, executives and lawyers do with it, embodies the law.
There is also the sociological theory. This theory posits that the Law can be found in how the people in the society act. In other words, the law resides in the society. For instance in Nigeria the law against bigamy is literally an obsolete Law. Even though it exists within statutes because it is a common practice enshrined in the customary the culture of people within the country.
Law plays various roles and functions in society today. These roles justify the need for it in a NY civilized society and it’s overriding value. The functions of Law cuts across social, political, moral, economic and literally all facets of human life and endeavour.
It protects the liberties of people that reside within its legal territory, ensuring the protection of their rights and privileges. It is a tool for the maintenance of peace and order in societies, it prescribes and guides a state’s policy, it provides resolution for conflicts, it stipulates citizens’ obligations to their state and government and the government and states’ duties and obligations to their citizens.
THE RELATION OF LAW TO JUSTICE
Justice is deemed one of the most fundamental parts of any society. This is because it is believed that without justice no society can peacefully coexist. And in relation to law, justice means different things to different people. For the accused it means to be exonerated from the crime he has been accused with. For the prosecution, it means that the accused be prosecuted and convicted for the crimes he has committed. To society on the other hand, it is that the person who commits a crime need one who is punished for this add crime, in other words that the innocence be exonerated and the guilty be convicted. Justice is considered such a core part of society that historically it has been by linked with fate and even the Cosmological way of nature among other things. There are about four aspects of justice; the first part concerns itself with the distribution of advantages and disadvantages in a society’s inequality as possible. The second aspect of justice concerns itself with restraining the abuse of Liberty and power. The third aspect involves the adaptation to change, For instance the changing of laws and statutes so as to come in alignment with what justice means in contemporary times. And lastly, justice refers to the resolution of disputes which is basically the business of charges or the court system.
Justice in relation to law considers whether in law is just or not. Usually when the law is clearly prescribed and the said law is been applied in alignment with the way it has been prescribed, then justice is deemed to have been done. The wrong application of law however is deemed to be injustice and unjust law and such cases, get appealed to ensure that justice is done.
According to Salmon, law is essentially an instrument of the society, with an end goal to making justice. Law is viewed from two major sides as well. First it is viewed widely, as to the quality of what Law is, whether it is the way it ought to be in line with the postulations of Thomas Acquinas and Saint Augustine or how it is according to John Austin among other contemplations. And second, in a stricter sense, as a subject or subset of morality.
There are two levels of justice; these are distributive justice and corrective justice. Distributive justice refers to the equal spread of opportunities, social benefits, amenities and responsibilities among the citizens of a society. An example of this is the freedom to acquire land, freedom of movement, the duty to pay tax and levies as created by the government among other things. Corrective justice on the other hand, refers to the situation whereby distributive justice has failed, and then corrective justice seeks to correct such failures and putting it back the way they ought to be.
In all as stated by Roscoe Pound, Noise especially true love social engineering to enhance societal benefits for its members and societies interest as well.
THE RELATION OF LAW TO MORALITY
This aspect concerns itself with the intersections of law and morality on each other’s business. It considers whether law should legislate over moral issues and whether moral beliefs should drive the enactment of law. It considers law’s business in moral issues like prostitution, homosexuality, adultery and the likes.
It interrogates the conflux between law and morality, for instance the law prescribes that murder is illegal and this is also immoral. However where a person is burning in fire for example, and another person refuses to do anything to help, this is not illegal but it is definitely immoral, so the relation of law intersect and distinguish themselves at each turn they meet.
The issues if homosexuality, prostitution a d adultery fro instance, concern whether law should legislate over private choices and morality, as they have no effect on the society. It seems to answer the question as to the role of Law in public and private morality. As Karl Marx argued, Law concern itself with the external conduct of it’s citizens or a moral agent. While morality concerns itself with the internal conduct of these moral agents.
It is however important to note that while moral tenets need to prove why they are right, to prove themselves for validity, so that they use normative language like “should” and “ought” among others. Law operates more in the nature of a command.
THE RELATION OF LAW TO ETHICS
This oversee the ethics and conduct of lawyers and the court in their business of dispensing justice at the court and in all other fronts if legal business. For the Lawyer, he is expected to be an epitome of Justice, in all his deeds as he is a minister at the temple of justice; the court. He is expected to not conduct himself in anyway that would discredit the profession. In the ethics of a lawyer client relationship, the lawyer is meant to obey all his client prescribes, so long as it does not involve crime. He is to maintain utmost confidence and the safest state of client privilege. So that whatsoever is discuss between him and his client may not be divulged to another party, except with the permission of his client. The lawyer is also expected to keep his clients monies in a separate account from his, to avoid any form of financial Indiscipline. He is expected to be respectful to his younger colleagues as well as respecting the hierarchy and senior colleagues at the bar. He is expected to maintain compliance with the lawyer’s dress code in the court, to be punctual, respectful to the bench among other things.
The Court as well, has duties it owes to the society and the bar. The court is to ensure its best that Justice is done there, it is to open early, to allow the business of Justice, start as soon as possible. The Court is also expected to be respectful to lawyers in its temple, to avoid favouritism among how they treat lawyers, maintain order within the court room among others.
THE RELATION OF LAW TO RELIGION
The law plays a vital role in its relation towards religion. For instance it is the law that determines the acceptable modes of worship or prescribes what would constitute unacceptable modes of worship. For instance the law would not allow the public practice of a religion that encourages killing people or offering human sacrifices. In its relation to religion, The law must not just prescribe rules based on moral tenets or a fair moral ground, what it must not be created in such a way that it is adverse save to another religion whose practice is not necessarily illegal.
In other words it seeks to interrogate the relation of law to religion hopes to interrogate the problems that may arise from this relationship if any exist between the two. for instance as to whether or not laws should have religious beliefs as a fundamental tenant for its creation. It is worthy of note that they are clear differences between moral tenants and even religious beliefs. So for instance in the Catholic Church priests are not allowed to have sex or have children. Muslims are not allowed to eat pork. it would however be wrong to create laws from these religious beliefs as laws that will generally apply to every person in a society especially those who don’t subscribe to them. so even if the law is going to have a basic moral tenets it should be moral tenants that could justifiably apply to everyone and not necessarily to just religious faithfuls.
The law does not come from a vacuum. It has fundamental sources from which it is being derived across different societies. it is worthy to note that as different or varying our societies are this is how different and varying the sources of laws usually are as well. For instance in Britain they majorly use unwritten laws as the major body of their legal system. In Nigeria however we use written laws as a major body of our legal system. There are various customs that are synonymous with particular societies. These customs also find their ways into laws. In this topic we will engage three major sources of law, legislations, judicial precedence and customs.
Legislations refer to the statutes enacted by sovereign law making body. In other words legislations concern themselves with rules and acts and regulations created by a sovereign law making body. there have been several legislations written across centuries however it was until the 19th century that legislations began to gain more prominence. In Nigeria for example, during pre colonial times, it was customs and cultures that basically determined how lives were regulated within Nigerian communities. however after colonialism especially with the inception of the 1914 amalgamation constitution, laws began to prevail as the major means of regulating conduct within the state.
There are several advantages and good points for legislations. First of, legislations are made by parliaments which usually reflects especially in a Democratic setting the wheels of the people as it is the people who usually vote these members of parliament into office in the first place. This is a point that makes them so much better than judicial precedence. The fact that it is representatives of the people that make these laws also mean that these laws are easily changed once there’s a clamour for the same. As opposed to courts where before the law can change their must be a case in regards to that issue, instituted in court. Also the presence of stare decisis in judicial precedence means it’s takes more time before a law is changed because it must get to the higher court that made the law.
Judicial precedent means judicial decisions or regulations, made from past judicial decisions on the same subject matter. So for instance, if the court holds that a boy is an adult by the age of 15, when another case comes before that same court on the question of what age another boy is, before he reaches adulthood, the court is to hold that it’s at 15 years of age. Judicial decisions can be traced back to English common law, where there were different customs across different counties and communities in the English kingdom. The judges (Lords, Barons etc) who were sent to decide cases, based on the customs of these communities upon comparative conferences with their fellow judges from other areas, found that some of the rules and customs for particular subject matter, were similar in different counties. This led to the gradual uniformity of laws in England that was then called common law. This customs were unified by consistent holding of these judges, giving similar decisions to similar cases, across board. Hence, the foundation of judicial precedence.
Judicial precedence operates with the principle of stare decisis which states that where there is a decision given by a higher court on a particular subject matter, whenever a similar subject matter is brought before a court lower than that higher court, the lower court is to hold in line with the same decision of the higher court.
As Salmond argued, for judicial precedence to exist, there must be two conditions fulfilled. First there must be a hierarchy of courts that is established. In the absence of an established hierarchy of highest courts in a land to lowest courts, then judicial precedence can’t operate. And secondly, that there must be a reliable and robust report of cases. This will aid in the ability to refer judgments and know which decisions to uphold in peculiar situations.
Von Savigny, the German philosopher of law, stated that there is a body of communal practices ad cultures that make up the “volkgeist* otherwise called the “spirit of the people” this is what he claimed made up law. This arose from natural consciousness, the cultures and customs of people.
In Nigeria, during precolonial times, the state operated according to customary practices, developed over time from the experiences and thoughts on life of each community. Today these customs, especially the long standing ones find their way into law, as a recognition of the communities in the various areas of the country. These customs however, under the legal practice of Nigeria, must fulfill particular conditions for them to be recognized under the law. The customs must ensure natural justice (in other words must be in line with the common reasoning of what is right or wrong), equity (fairness) and good conscience. There are also three tests that need to be passed. The repugnancy test; this checks whether the custom in question is not in itself unjust, that the custom does not go against the tenets of what is right and equitable to do. That it aids the duty of the court, which is the granting of Justice. The next test is the incompatibility test, which seeks to ensure that the custom in question is not contradicting any enacted law already in force, by the time the case was instituted in court. And lastly the pubic policy test. This considers in line with the realities of contemporary times, whether the custom in question is desirable. These have been illustrated in various cases including Laoye v Oyetunde (1944), Lewis v. Bankole (1908) among others.
Under this topic, we will the conceptions of legal personality and liberty , as well as ownership and possession. These concepts are vital considerations in legal jurisprudence, as they determine the rights, obligations and responsibilities ascribed to two major concerns of law, the lives and endeavours of persons, and their property.
Legal personality under legal jurisprudence, refers to the entity of a person or property or group of persons may have under the recognition of the law. The effect of being an entity, is that such entity is viewed as a party that can utilize the court and the law. Am entity that is recognized as having responsibility and rights under the law. It is a legal entity, that can sue when wrong is done against him or her, and also has the capacity to be sued. An entity, does not necessarily have to be a person or individual as it were. It could be a group of people, it could be a company. As shown in the renown Salomon v. Salomon case. The essence of this legal personality is to ensure the veracity of all who come before the court system. For the bestowing of a legal personality on companies, there have been several theories that have sought to justify or nullify this legal reality. They include the realist theory (that the granting if legal personality on companies or corporations is only a recognition of contemporary realities), the bracket theory, the fiction theory (that only humans as legal entities are real, that companies are fictional entities, that it is people who work in these companies and as such they should be deemed responsible or not for a companies actions), the purpose theory (that companies are at best juristic or artificial persons. That only human beings can really have worries) among others.
Liberty on the other hand, considers the conception of liberty in relation to the law and how the law helps to establish the liberty of it’s people. Liberty under legal jurisprudence refers to the privileges and benefits one gets from the institution of the law. For instance the establishment of human rights and other legal privileges under the Nigerian constitution. There are different arguments as to whether it is the duty of the law to ensure the liberty of the people in a society or not, but either way it is agreed that liberty means the freedom from oppressive restrictions on behaviours, political views, and life. The jurisprudence of liberty considers when liberty is gotten best for the individual. Whether it is with the presence of the law; where it is argued that in line with the social contract, the purpose of the law is to ensure the legal protection of the liberties and rights of people. Or the absence of the law, where anarchist argue that the law is a tool to restrict the liberties of people and their ability to self actualize, as the where there is a corrupt government, instead of the protection of liberties, the law could easily become a tool of oppression.
Ownership refers to the ability, to be able to exercise full control and management over a particular property. It is a right in rem over a property. Right in rem meaning the ability of the rights on a property owned can be enforced against anyone else in the world. Salmond stated of ownership, that “ownership, in its most comprehensive signification, denotes the relation between a person and right that is vested in him.”
John Austin also stated that ownership “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.”
Under the legal jurisprudence, there are two major types of ownership; legal and equitable ownership. Legal ownership refers to laws ownership established and recognized by Law, and by law; common law. Equitable ownership on the other hand refers to ownership gotten from the rules of equity.
There are several characters and rights that come with ownership. These include the right to exclusive possession for life unless this right is transferred to another by sale or gift, the right to to use the said property as the owner sees fit, unless in that use it affects the rights of another party, the right to alienate or destroy the property owned. All in all ownership refers to an unquestionable exclusive power over a property.
The word possession has been subject to several definitions by several legal jurists. Savigny defined it as “The intention coupled with the physical power to be able to exclude others from the use of material objects”, Salmond stated that: “the possession of a material item is the proceeding with the exercise of a case to its select utilization” this involves two elements the Animus possession which is the mental element of possession and the corpus possidendi which refers to the ability or right to legally or physically enforce such possession. He also stated in his opinion, that there are two types of possession; possession in fact and possession by law. Possession in fact means where the possession involves actual or physical relation with the object. Possession in law exists when such possession is recognized by Law, here it is not necessarily a physical or material object, it could be a right, like the right to possess a land to exclusion of everyone else for a fixed period of time among others. To Kant “there must be an observational reality of taking possession conjoined with the will to have an outer item as one’s own”
Across these various perceptions as to what possession entails, possession refer to the ability to be able to exercise proprietary interest over a property in accordance with the law, under legal jurisprudence. The jurisprudential concerns on possession, revolve around what the exercise of possession should mean, it’s distinction from ownership, the recognition of the law for those who have such rights and who deserves possession right to a particular property or choses in action among other things.
The natural law school of thought, represents contemplations on law sustained by idealism. The nature of this school of thought lives in postulations on what should be done, on ideas of what is right or wrong. A world of “oughts”, were law refers to what ought to be done rather than what already exist. So that good law or valid law was one that was in line with idealistic notions of what is right or wrong. There is a wide range of philosophers that subscribed to the natural law school. These include Aristotle, Thomas Aquinas, Plato, Saint Augustine, Cicero among others. In fact Cicero was quoted to have stated on natural law or ‘true law’ where he shared his opinion on the parameters of law, that:
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.“
From the above opinion of Cicero, it becomes clear that the philosophy in natural law, refers to the role of The perception of God’s input in what law means, that law essentially laws made in alignment with the will or dictate of God. He ascribed the validity or otherwise of law to its alignment with the individual’s understanding of God’s tenets. A major undertone in the natural law school of thought.
Hans Kelsen, though not a proponent of the school, in his text WHAT IS JUSTICE? (…) described the natural law philosophy this:
“The natural law doctrine undertakes to supply a definitive solution to the eternal problem of justice, to answer the question as to what is right and wrong in the mutual relations of men. The answer is based on the assumption that it is possible to distinguish between human behaviour which is unnatural, hence contrary to nature and forbidden by nature… certain rules which provide an altogether adequate prescription for human behaviour… Nature is conceived of as a legislator, the supreme legislator.”
Here, he emphasized how in alignment with the belief of natural law school that the determination of what true law is, can be gleaned from the observance of nature, so that what is in alignment with the laws of nature, is deemed law and what isn’t it not law. He also emphasized a fundamental assumption in the natural law School of thought. That the knowledge of what is the rule of nature is comprehensible in similar terms by everyone.
NATURAL LAW POSTULATIONS
Natural law theories are premised on two major factors; the divinity in law or theological background of law, on the one hand, and reasoning representing the secular half of natural law. This means that there are two major perceptions on how to deduce true law or valid law, under the natural law school. Firstly, through the dictates and rules of God, and secondly, through reasoning and observance of the laws of nature. In fact Hugo Grotius would go as far as stating that even without the existence of God, that natural law would still exist, in the consideration of common sense or reason as to what is right or wrong to do. That this would be sufficient in determining what is Law or not. As Rene Descartes also stated about this school of law, it is a moral school of thought.
The natural law school is deemed universal in application, and the beliefs of this theory on what constitutes law not subject to change. In other words natural law theorists believe that what constitutes natural law or good law is the same everywhere and does not change with contemporary dynamisms. It is from the natural law, that conceptions like Human Rights, and the inherency of this right for everyone by virtue of being human is an example of the idea evolutions of natural law. Likewise the social contract where society submitted their rights to a government in return for protection of their lives and property.
CRITICISM OF NATURAL LAW
There are however, several criticisms of the natural law. First, that it places a moral flavor to what Law is. This is a heavy criticism of the positivist school against natural law. That a law’s validity and whether such law is normally right or wrong should be and are different issues. In other words, that the ascribing of valid law on the grounds of what is right or wrong, is unrealistic.
Moreover, another criticism of the natural law school is the fact that it’s assumption of rationality and the ability of everyone to be able to reason what is right or wrong by observing nature and what not is false. This is because people reason in various ways. For instance, Nazism and Nazists believe in their supremacy over the Jewish race. That this is a natural law, while Jews obviously think very differently. The lack of consensus of rationality is one that makes the natural law bound to fail as a school of law. This was what Professor A.C Ross stated about natural law in his text
The natural law school is also criticized for its lack of a sanction mechanism for law. It is argued that this is a fundamental part of law; the ability to punish wrongdoers or violators of that said law. The punishment for the violation of natural law is left in the hands of God and or reason. Also, the natural law school is criticized on its ignorance of the necessity of contradicting effects of laws. While the implementation of a law might be profitable and acceptable to one and then punitive or defecting another’s interest. For instance, where two people pay for a land. The Land Use Act prescribes who would own the land, based on the quality of title acquired and things like the first to get interest in the land, might own the said land. So law can have diverse effects to different people.
This school of thought essentially was created in response to the natural law theories. So under this topic, a lot of contrast with the natural law School of thought will be applied here. The direct contradiction of the positivist school of law with the aforementioned school is majorly that law is what is, not what it ought like natural law argues. In other words, the definition or comprehension of law lies within empirical, actual observable facts, not thoughts or the idealistic and moral propositions of the natural law School of thought. Legal positivism in the contemplation of law prioritizes what can be demonstrated or shown in real life social experiments. Legal positivism is essentially descriptive in its propounding of law and not prescriptive like natural law.
THE POSITION OF POSITIVISM
Positivism which evolved after the theological age; where religion had the monopoly of determining what was and what wasn’t, began with the drive for more empirical facts, the empirical age. People had begun to question the veracity of religious claims. For instance, during the theological age the church had postulated that the world was flat, Galileo Galilee a scientist and inventor at the time argued that the world was spherical. The eventual consequences of these contradictions with religious philosophies led Galileo Galilee to be killed by the church for blasphemy. These preposterous claims of religious sects at the time were soon proven to not be quite as strong claims as they portrayed them to be. This led to a lot of doubt, and led to the Renaissance age, where the quest for empirical proof for any claim was prioritized. The Legal positivist school was an offshoot of this time, particularly during the 18th century.
Comte a philosopher postulated that there are three major ages in the development of thought. The theological age (where knowledge is linked to religion, it is in this time that the natural law School of thought thrived. The kind of age that existed before the Renaissance era) the metaphysical era (in this age, where knowledge is based on idealistic and abstract ideas) and the positivist era ( here is where knowledge evolves from scientific, empirical experimentations). Early legal positivists include Jeremy Bentham who lived from 1748-1832 and John Austin who lived from 1790-1859.
The legal positivist school makes several major claims in contrast with the natural law School of thought. We shall now discuss these claims. Firstly, the positivist school defended the pursuit for defining law, that this was not necessarily a pursuit in futility especially in it’s clarification from the undertones that natural law school presented in it’s postulation. They also argued the separation of the definition of law, from historical enquiries into how Law originated, or it’s sociological effects and literally other phenomena other than its definition.
Secondly, the legal positivist school argues that law is essentially a command on human beings by a superior; an uncommanded commander, who gets habitually and consistent obedience from his inferiors who he commands. This obedience is not bore out of reasoning or moral including nation’s, but because of the fear of punishment which occurs when an inferior disobeys. This punishment is prescribed by a sovereign who as John Austin in his text which is one of the most respected rubrics on positivist school of law: The Province of Jurisprudence Determined (1832) put it:
“If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society.”
Asides John Austin, Jeremy Bentham was also a proponent of this theory of legal positivism.
Another major claim of positivism, states that unlike the claims of the natural law school of thought, the law is not linked to morals or reason for survival. This means that while in time, there might be some links between the law and morals, these relations are coincidental at best. Each of these conceptions; morals and the law can exist without the other. This means that law is not necessarily moral for it to be valid Law, and morals do not need to be binding on the conscience like a law of the heart for it to be valid. Proponents of this theory of positivism include John Austin, Hans Kelsen, Jeremy Bentham, Hume and Hart.
In more recent Legal positivism, positivism also interrogates the conceptions of the flaws in moral punishment modes and punishments systems that the natural law school propounded. It is argued that this cannot be defended or verified as an empirical proof, evidence or statement of fact. In other words, the mode of punishment to ensure obedience that the natural law school prescribes is in real life situations, unrealistic or inefficient. It is the force of law in providing punishment for a violation of the law, (for instance the provision of death as the sentence for murder in the criminal and penal code of Nigeria) ensures obedience of law, not moral inclinations.
Lastly, Hans Kelsen argued that the legal system is a closed form of logical system. In other words, the system of the creation of valid law, is one that evolves from the logic and deduction of previous laws and regulations. Not social norms, moral reasoning and the likes like the natural law school of thought.
This is a school of thought that claims history to be the cradle of law. In other words, when we consider the fundamental ground upon which law is to be created, what we should find is history. History in this school refers to a compilation of past occurrences that has happened amongst a people. It is a school of Law that rests on the role of past generations on present circumstances as well as the roles of past generations and their implications on the futures of the societies that have these histories.
There are two major philosophers of this school; Frederick Carl Von Savigny (1799-1861) and Henry Maine (1822-1888). Savigny stated that Law advances with the decline and growth of a people. This means, that a law must represent the advancements across the historical records of a group of people. He was the postulator of the Volkgeist concept.
HISTORICAL SCHOOL CONCEPTIONS
These postulations of Von Savigny, were based on his experiences and studies of the Napoleon conquest as well as the French Revolution of the 18th Century. It was after these events that affected the major opinions he had in relation to the historical School of Law. Von Savigny argued that any law that ignores history, ignores a fundamental part of what would constitute relevant law. He was of the opinion that, such law would be missing the true foundation of knowledge; the historical antecedents and traditions, norms amongst a people. Savigny also claimed in his text; OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE (1814) that volkgeist provides the fundamental way to know the essence of law. It was the understanding of the spirit of a people that best reflects what laws should mean:
“We first enquire of history how law has actually developed among nations of the nobler races … That which binds a people into one whole is the common conviction of the people, the kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin.”
He stated that the law does not evolve from or exist in a vacuum; it exists in the mores of the society, in which such law was situated. And as such, laws are not meant to be made but found in the study of the people, their ways, practices, customs and the likes. The consequence of a law not having this quality, that is, depicting or showing the relevance of history peculiar to a people, is that it becomes irrelevant.
As he stated: “Law grows with the growth and strengthens with the strength of the people and finally dies away as the nation loses its nationality or as a people loses its individuality”.
Von Savigny also postulated a historical progression of legal development. According to him, relevant legal development flows across three levels. First, from customs which are essentially unwritten and passed by word of mouth. These customs are also deduced from the uniform practices of communities. This is the most basic form of volkgeist. Secondly, its proceeds to the codification of these customs. Here, the unwritten laws and practices are reduced into written form, so that they are easily referable to. And lastly, it proceeds to legislations which focus on particular purposes. For example, the criminal law of Nigeria focused on crimes, the Land Use Act of Nigeria. He, however, warned that in the situation whereby these laws become too complex, it would lose touch with the people and soon become irrelevant. As it has lost the volkgeist.
Henry Maine on the other hand, also stated three stages of legal development. The first stage was the stage of absolutist power. This is the time when Kings have monopoly over what would constitute the law and were the ultimate determiners of what the law meant within the customs I of a people. It is in these times, the King or monarch can do no wrong, since he has the monopoly of explaining what the rules would be. He is deemed a representative of the gods or God amongst the people and the ultimate determiner of right or wrong. The second level on the other hand, is where this absolutist power of kings and monarchs over the explanation and interpretation of laws, was transferred towards more political systems or the military. This is driven by oligarchies who basically had monopoly over the making of laws and its interpretation.
The last stage according to the classifications of Henry Maine, involved where all monopolies of law both absolutist and political systems are eventually broken down to codifications of these customs into legislature; written down. This way they can be more easily interpreted by anybody who read them.
Current examples of the postulations of Von Savigny and hence the ground for the relevance of the historical School of Law is the law of the death sentence in the Nigerian law system today. This system essentially was derived from the mosaic laws as well as the customs of Nigerian societies; the Hausas, Yoruba, Ibo communities, where it was customary that when a person killed another especially when this was done unjustly, such person was required to die; An eye for an eye and tooth for a tooth.
Savigny also stated that law would be ineffective, if it doesn’t reflect the volkgeist of a society. In response to natural law, he postulated legal relativism, which stated that unlike the positions of natural law, that law resides in reason and this residence of law was universal, he argued that the law, instead, changes with historical facts of each communities. It is different for different people who live across different geographies, space and time. That law would change in alignment with the differences that a community undergoes, across the different spheres they exist in.
In summary, the Historical School postulates that all laws should evolve from history and that every legislation should depict or show shifting historical experiences of these societies. That laws and regulations should not change if the historical antecedents or paradigms of the people had not changed. Also it was a school of thought that was aversive to received law. Arguing that customs are to be the ultimate determiners of law and that any law less than customs should be deemed not law or irrelevant law. As it is doomed to become obsolete.
CRITICISM OF THE HISTORICAL SCHOOL
The historical School of Law however has been subject to several criticisms. Firstly, it is argued that it is essentially difficult to find empirically, what would constitute volkgeist. That the idea of volkgeist is unreal or Herculean to find. Also that the school applies to majorly homogeneous societies at best. This means that in heterogeneous societies like Nigeria for instance, the historical School of Law would come to nothing.
It was argued that customs change across times and at the occurrences of major happenings. These, asides historical events. An example would be if a group of people had historically lived up on mountains and then by an avalanche, or disaster had to begin to live in the Valley, then this change of locations will definitely change the customs of these people, regardless of their history in mountain living then these can effect fundamental change on the customs of people without necessarily paying attention to their historical inclinations or factors.
And also in relation to its arguments that any law that is not in concordance with the volkgeist of people, it would become irrelevant. There are several examples that debunk these claims. For example in Nigeria with the statutes of general application (SOGA), equity and common law, which were enshrined in the culture and history of the English, have evidentially opted into by the Nigerian legal system and has gone to become a fundamental part of our system, even though it may not be not have been in tandem with communities or societies within Nigeria.
Another criticism Von Savigny’s theory of the historical School of Law is the fact that he focused on and studied the Roman law as a template for what historical school of thought, and how the customary antecedents of a people make the foundational cradle of their law. However he was prescribing this Roman template for German society. In other words, while he may have stated that Law not in line with volkgeist was aversive especially to received laws and necessarily needed to show the customs of people, he was actually advocating for a Roman style of law which would definitely have been averse to the customary practices of the German societies of his time. This fundamental contradiction is another major criticism of the historical school of thoughts.
The major philosophers of this school of law are Erlich (1862-1922) from Austria, Max Weber (1864-1920), Jhering (1818-1892), Roscoe Pound (1870-1964). These philosophers gave their various visions of what law is within the purview of what now constitutes the sociological school of law. This topic will engage the underlying tenets of the school and the criticism of the school as well.
The Sociological school evolves from the philosophies of the study of sociology. The term sociology with was invented by Auguste Comte (1798-1857). Sociology concerns itself with the patterns of behaviour of people in their social environment. Their interaction with their personal peculiarities and the societies they live in. Under this view, the sociological school handles and contemplates law as a social fact. It incorporates the effects that law is meant to have on society among others. Roscoe Pound in his text MECHANICAL JURISPRUDENCE stated about social movements:
“[A] movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument.”
This school postulates that the existence of what Law is in the actions of society. This school postulates that the duties of law is to bring together and effect the wants and needs of people. In other words, the law is to ensure the interests of the society. It advocates that when Law is being made or to be made, the practice of what is done is society is meant to be the major point of consideration before making such law. The law made must them be one that is in line with the social practices that already exists in the day-to-day realities of the society. Otherwise, a law that is not in line with social practice will be unworthy law, it will be grossly disobeyed and become obsolete. According to the sociological school, the society must determine what law is, not the other way round. As Jhering stated that the duty of law is to preserve individual a d social interest. However, when these two clash of cross paths, it is the duty of law in its resolution role to reconcile such conflict in a way that ensures society’s interests are preserved. This means that societal interest is always to be the priority in the instrumentality of law. As he further argued, the assurance of societal interests also ensures the interests of individual interests as the singular components of a society. In his words, Law is “the partnership that is realized between the individual and society”. The purpose of law must be societal needs.
It’s important to note that the sociological school of law is different from the historical school of law. While both schools advocate for the recognition of the law effecting societal needs, the historical school is focused on the past of the people in determining worthy law. Sociological school concerns with the contemporary, present practices of the society.
The school argues that when law changes, it must be in line with the social changes in society. Erlich stated that that there were two sources of law. The first being the Legal history and development of a legal system, this involves the likes of judicial precedence, former statutes among others. The second source of law in what he termed “Living Law”. According to him, living law, refers to the norms of society. The actions that have become social conventions and uniform practices. This is the most powerful and relevant law. Since the law is meant to be a tool of society, then the practice of society has to remain the prioritization in all considerations of law. He also stated that the duty of lawmakers is to link the positive law (legal history and development) with living law.
This school while it may seem quite desirable especially since it recognizes the society where law exists as its highest priority. However it has been subject to criticisms on the flaw of the school. While the school claims that the practice of society must be the ultimate determiner of law, it does not create a response for what happens when the actions of society are not desirable. For instance, the ride practice of corruption in Nigeria, which has almost become a sort of norm within the society. Under the sociological school of law, seems to require lawmakers to incorporate this practice into law. Another example is refusal of Nigerians to not wear seatbelts while driving. Even if this is a prevalent practice, it becomes imperative that the law is created to discourage such behavior as it could lead to increase road accidents and death. Law is not meant to be always determined by the conduct if society. The law can also influence societal behaviour.
This is a prevalently American jurisprudence, particularly around the early 20th century. This school of law is more pragmatic and seeks that law be considered in its most realistic terms. And forego all the philosophical ideas that pervades all other school of thought. The realist school of thought argues that the residence of law lies within the demeanor and decisions of the court. In other words, when we seek to find what Law is, or what is the law in any society, we are to check its judiciary system. This school posits that law cannot be separated from its application. That is, it is where the law is being applied, that the true nature of law might be revealed. A major proponent of this school includes Oliver Wendell Holmes, Karl Llewellyn among others. Oliver Wendell in his text “The Path of Law” stated:
“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.(rejecting the view of other schools that law:) is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions”.
From the above quote, it is seen that the law or whatever it means must be in alignment with what the judges say, or are expected to say, within the realist school. The end goal of parties that come to the court system are usually their primary focus. Not whether the law is fair or not, hence the concern of their lawyers as well, is to find the best way to ensure the judge gives their judgment in their favour. This school delineates law from the metaphysical contemplations of the likes of the natural law school. That law is subject instead to the power of the Judges.
Wendell home also postulated the bad man theory, emphasize the importance of the judge in the determination of what laws is, when he stated: “[I]f we take the view of our friend the bad man we shall find that he does not care two straws” , that his legal responsibility is “a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment”. In other words, the court has the most important determiner if what Law is to the practical and pragmatic realities of any legal system, according to Wendell Holmes.
It is under this school of thought that concepts like the doctrine of stare decisis, becomes more important. Under the doctrine of stare decisis, it starts that where a decision has been given by a higher court in a court hierarchy, all decisions made in such matters as may come to lower courts, should be in line with the decision of the higher court. Realism conducts itself in the business of interrogating the decision making apparatus in the court. It interrogated all the indices that could influence a judge to give a particular decision. It encourages that judges take the responsibility of deciding a case, very seriously. That they consider the likes of public policy; ensuring that the public’s interest is always granted, the conventional values and fairness in their dealings. The realist school encourages judges to not be formalistic in the granting of judgments, but examine what would amount to justice in the peculiar fact of a case and then, mete out the same in any case before them. The realist school views law as an instrument of the state and judges are meant to ensure the decisions are best for the society’s interest.
This school has like every other school of law has been subjected to criticisms. The realist school has a major criticism; that while it claims that the law resides in what the court says and lies within the business of the court, when a judge wants to make a decision, especially non-formalistic ones, this will require that the judge considers what the law should be. This will be based on the judges’ ideas which may be founded on any of the other schools of thought. Also the realist school states that while judges are expected to be constructive and contributory in their decisions, there are some clear cut provisions for specific matters that have been legal clarified, so that the need for such judicial activism is not necessary.